Ex Parte Redin Burguete et al

Patent Trial and Appeal Board

Jun 22, 2018

12299810 (P.T.A.B. Jun. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/299,810 12/16/2008
21706 7590 06/26/2018
NOTARO, MICHALOS & ZACCARIA P.C.
100 DUTCH HILL ROAD
ORANGEBURG, NY 10962
FIRST NAMED INVENTOR
Maria Del Rosario Redin Burguete
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
G80-054 US 3065
EXAMINER
DEES, NIKKI H
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
06/26/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patent@notaromichalos.com
USPTO@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARIA DEL ROSARIO REDIN BURGUETE,
CARLOS LONGO ARESO,
and JOSE IGNACIO RECALDE IRURZUN
Appeal2017-009056
Application 12/299,810 1
Technology Center 1700
Before ADRIENE LEPIANE HANLON, ROMULO H. DELMENDO, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134(a) from an Examiner's
decision finally rejecting claims 50, 54, 67, 70, 72, and 80-87. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The real party in interest is said to be Viscofan, S.A. Appeal Brief dated
February 2, 2017 ("Br."), at 3.
Appeal2017-009056
Application 12/299,810
The claimed subject matter is directed to a stuffed meat product in an
artificial collagen casing, wherein at least some portions of the artificial collagen
casing include a reducing sugar that gives the meat product a golden brown color
when it is heat treated.
Representative claims 50 and 86 are reproduced below from the Claims
Appendix of the Appeal Brief.
Claim 50: A stuffed meat product in an artificial collagen casing,
wherein the artificial collagen casing comprises an aqueous
solution,
wherein the aqueous solution consists of at least one reducing
sugar selected from glucose, dextrose, fructose, galactose, lactose,
maltose, mannose, fucose, xylose, erythrose, threose, com syrup, high
fructose com syrup, maple syrup, honey, molasses, and their mixtures,
and also, optionally, a plasticizer, and
wherein the reducing sugar gives the meat product a golden
brown color by heat treatment of the stuffed meat product.
Br. 13.
Claim 86: A stuffed meat product in an artificial collagen casing,
wherein some portions of the collagen casing are impregnated
with a reducing sugar, and other areas of the collagen casing do not
contain reducing sugar; and
wherein a portion of the collagen casing is impregnated with
reducing sugar in a form of at least one of a logotype and grill marks.
Br. 15.
2
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Application 12/299,810
The following rejections are maintained on appeal:
(1) claims 50, 54, 67, 70, 72, and 80-82 under 35 U.S.C. § 103(a) as
unpatentable over Griesbach et al. 2 in view of Morgan et al. 3 and Ballard et al.; 4
(2) claims 83-86 under 35 U.S.C. § 103(a) as unpatentable over
Griesbach in view of Morgan; and
(3) claim 87 under 35 U.S.C. § 103(a) as unpatentable over Griesbach in
view of Morgan, and further in view of Ballard.
The rejections are sustained for the reasons provided in the Final Office
Action dated May 11, 2016 ("Final Act.") and the Examiner's Answer dated
March 16, 2017 ("Ans."). We add the following for emphasis.
B. DISCUSSION
The Examiner finds Griesbach teaches applying a food colorant to the
surface of a foodstuff to provide a predetermined pattern (e.g., grill marks) to the
foodstuff when it is heated or cooked. Final Act. 3. Griesbach discloses that the
food colorant may be any colorant suitable for application to edible items and
typically is the type that generates color by a Maillard reaction, i.e., reacts with a
protein of the foodstuff during a heating process to form a brown to black color.
See Final Act. 3 (citing Griesbach i-f 16). The Examiner also finds Griesbach
teaches applying the food colorant to meat products including chicken, beef, and
pork but does not expressly disclose that the food colorant is applied to stuffed
meat products. Final Act. 3. Griesbach, however, discloses that "[a] foodstuff that
can be treated in accordance with the present method is any foodstuff that is cooked
or heated prior to serving". Griesbach i-f 12 (emphasis added).
2 US 2005/0008742 Al, published January 13, 2005 ("Griesbach").
3 US 2005/0031741 Al, published February 10, 2005 ("Morgan").
4 US 6,261,612 Bl, issued July 17, 2001 ("Ballard").
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Application 12/299,810
The Examiner finds Morgan discloses collagen casings for stuffed meat
products, such as sausages that are heated by either grilling or frying. The
Examiner concludes that it would have been obvious to one of ordinary skill in the
art to treat the stuffed meat products of Morgan with Griesbach's food colorant.
Final Act. 3--4.
The Examiner finds Griesbach does not disclose an aqueous solution of the
claimed reducing sugar. The Examiner, however, finds Griesbach discloses an
aqueous solution comprising the browning agent hydroxyacetaldehyde (HAA),
commercially available as Maillose®. 5 Final Act. 4 (citing Griesbach i-fi-f 18-19).
The Examiner finds Ballard discloses known browning agents include HAA (as
Maillose®) as well as reducing sugars such as dextrose, maltose, fructose, and
lactose. Final Act. 4 (citing Ballard, col. 5, 11. 9-20). Based on the teachings in
Ballard, the Examiner concludes that it would have been obvious to one of
ordinary skill in the art to substitute any of dextrose, maltose, fructose, and lactose
for the HAA disclosed in Griesbach with a reasonable expectation of successfully
providing a brown color to the foodstuff upon heating. Final Act. 4.
The Appellants argue that
persons of skill in the food art, looking to improve on stuffed meat
casings and MAILLOSE, would not be likely to look at mashed potato
references without being aware of the Applicants' invention because it
relates to [a] different problem- i.e. a very different starch-based
food, where milk in the mashed potatoes are the primary source of
amino acids for the Maillard reaction.
Br. 11.
5 Ballard discloses that MAILLOSEâ„¢ is a composition derived from a sugar or
starch. Ballard, col. 5, 11. 22-26.
4
Appeal2017-009056
Application 12/299,810
1979):
As explained by the Court in In re Wood, 599 F.2d 1032, 1036 (CCPA
In resolving the question of obviousness under 35 U.S.C. § 103, we
presume full knowledge by the inventor of all the prior art in the field
of his endeavor. However, with regard to prior art outside the field of
his endeavor, we only presume knowledge from those arts reasonably
pertinent to the particular problem with which the inventor was
involved.
"A reference is reasonably pertinent if, even though it may be in a different
field from that of the inventor's endeavor, it is one which, because of the matter
with which it deals, logically would have commended itself to an inventor's
attention in considering his problem." In re Clay, 966 F.2d 656, 659 (Fed. Cir.
1992). "References are selected as being reasonably pertinent to the problem
based on the judgment of a person having ordinary skill in the art." In re Kahn,
441F.3d977, 987 (Fed. Cir. 2006).
In this case, we find that the field of the Appellants' endeavor is stuffed meat
products and the particular problem with which the Appellants' were involved is
providing a suitable golden brown color to a foodstuff, specifically a stuffed meat
product, using a Maillard reactant. We find that Ballard would have commended
itself to the Appellants' attention because Ballard provides a golden brown color to
a foodstuff, specifically a potato composition, using a Maillard reactant. See
Ballard, col. 3, 11. 22-31.
The Appellants argue that milk in Ballard's mashed potato composition is
the primary source of amino acids for the Maillard reaction, and for that reason,
Ballard relates to a different problem. Br. 11. The Appellants, however, do not
direct us to any evidence establishing that the source of the amino acids (e.g., milk,
collagen) in a Maillard reaction is critical. In that regard, Ballard discloses that
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Application 12/299,810
"[t]he most common reaction responsible for surface browning during cooking is
the Maillard reaction ... between naturally occurring reducing sugars and
compounds containing an amino acid group, e.g. amino acids, peptides and,
proteins which results in the formation of colored melanoidins." Ballard, col. 1, 11.
35--40. Therefore, we are not persuaded that Ballard's problem is so different from
the Appellants' problem that the Ballard reference would not have commended
itself to the Appellants' attention in considering their problem.
The Appellants also direct our attention to the following disclosure in
Ballard:
The browning agent [for the mashed potato composition] may be any
browning agent commonly used in the manufacture of frozen foods
including, but not limited to, amino acids, reducing sugars such as
dextrose, maltose, fructose, lactose, and hydroxyacetaldehyde [HAA],
mono- and di-saccharides, rhamnose, ribose, edible bases, or any
combination thereof.
Br. 7-8 (citing Ballard, col. 5, 11. 8-16) (italics added).
Br. 8.
The Appellants argue that
Ballard only teaches that reducing sugars and HAA are among many
browning options which are used with frozen foods, such as frozen
mashed potato products.[6J Ballard does not teach that HAA and
reducing sugars are generally interchangeable or equivalent. Ballard
does not teach that the listed browning agents are effective or
equivalent with foods generally, and certainly does not teach or
suggest their use in the unusual context of artificial collagen casings
for meat products.
The Appellants' argument is not persuasive of reversible error. There is no
dispute on this record that Ballard discloses that browning agents include dextrose,
6 We take official notice that stuffed meat products, such as sausage, were known
to be frozen prior to cooking or heating at the time of the Appellants' invention.
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Application 12/299,810
maltose, fructose, lactose and HAA. See Ballard, col. 5, 11. 8-26. Griesbach
discloses that "[t]he food colorant applied to the foodstuff can be any colorant
suitable for application to edible items" and "[t]ypically, the food colorant is the
type that generates color by a Maillard reaction." Griesbach i-f 16 (emphasis
added). Thus, one of ordinary skill in the art looking for alternative food colorants
for the foodstuff disclosed in Griesbach 7 would have found the teachings of
Ballard useful. That is, one of ordinary skill in the art would have been motivated
to use any one of the browning agents disclosed in Ballard, including dextrose,
maltose, fructose, and lactose, to brown the foodstuff disclosed in Griesbach,
including a stuffed meat product, with a reasonable expectation of successfully
imparting a golden brown color to the foodstuff when heated.
In an attempt to show that one of ordinary skill in the art would not have
been motivated to substitute the HAA disclosed in Griesbach for the reducing
sugars disclosed in Ballard, the Appellants argue that "HAA and reducing sugars
are not equivalent, at least in the context of artificial collagen meat casings." Br. 9
(emphasis omitted). The Appellants argue that they have found that "'aldehydes
such as formaldehyde or glutaraldehyde ... end up modifying the frying properties
of the product by cross-linking."' Br. 9 (citing Spec. 8, 11. 9-12). According to the
Appellants, HAA is a similar aldehyde. Br. 9.
In response, the Examiner finds, and the Appellants do not dispute, that
"HAA is neither formaldehyde nor glutaraldehyde." Ans. 8. To the extent that
7 As pointed out above, Griesbach discloses that "[a] foodstuff that can be treated
in accordance with the present method is any foodstuff that is cooked or heated
prior to serving." Griesbach i-f 12 (emphasis added). Thus, one of ordinary skill in
the art would have understood that Griesbach' s foodstuff includes the stuffed meat
products disclosed in Morgan.
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Appeal2017-009056
Application 12/299,810
HAA is similar to formaldehyde or glutaraldehyde, the Appellants have failed to
show that any one of HAA, formaldehyde, or glutaraldehyde modifies the frying
properties of artificial meat casings. See Spec. 8, 11. 9-12 (disclosing that
properties of the casing may happen with formaldehyde or glutaraldehyde ); see
also Ans. 8 (noting that "at p. 8 line 10 [of the Appellants' Specification] it is
stated that this crosslinking 'may (emphasis added) happen with other
aldehydes "').
Finally, the Appellants argue that "reducing sugars provide synergistic
advantages when used with stuffed meat products in artificial collagen casing (i.e.
superior tensile strength and dilatability)." Br. 9. The Appellants, however, do not
direct us to any evidence of unexpected synergistic advantages. See In re Schulze,
346 F.2d 600, 602 (CCPA 1965) ("Argument in the brief does not take the place of
evidence in the record."); see also In re Kollman, 595 F.2d 48, 55 n.6 (CCPA
1979) ("Synergism, in and of itself, is not conclusive of unobviousness in that
synergism might be expected.").
As for claims 54, 67, and 81-86, the Appellants argue that "no cited
reference teaches applying reducing sugars or reducing sugar solutions in the form
of grill marks or logos to any food product." Br. 12 (emphasis omitted). The
obviousness rejections of claims 54, 67, and 81-86, however, are based on a
combination of references. Significantly, the Appellants do not direct us to a
reversible error in the Examiner's conclusion that claims 54, 67, 81, and 82 are
rendered obvious by the combination of Griesbach, Morgan, and Ballard or the
Examiner's conclusion that claims 83-86 are rendered obvious by the combination
of Griesbach and Morgan.
The rejections on appeal are sustained.
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Application 12/299,810
C. DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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